检察机关撤回起诉若干问题探析

Research on Withdrawal Prosecution by Procuratorate

对于检察院不当提起公诉的案件,由检察院及时撤回起诉,不仅有利于节约司法资源,而且有利于被告人及早摆脱诉讼,是一项符合我国国情的制度设计,应当继续保留并加以完善。一方面,为充分保障被告人权益,将检察院撤回起诉的时间限定在宣判前是合理的,由法院对检察机关的撤回起诉进行审查并决定是否准许也是正当的,应当继续坚持。另一方面,我国应当进一步完善对撤回起诉的司法审查,明确法院应当对检察机关的撤回起诉进行实质性审查,在征得被告人同意后,必要时也可以建议检察机关撤回起诉。在司法救济方面,根据无利益则无诉讼的原则,对于法院的准许撤回起诉裁定不得上诉、抗诉,但对于法院的不准许撤回起诉裁定,控辩双方均可上诉、抗诉。

To the improperly prosecuted cases,the procuratorate’s withdrawal prosecution as soon as possible,is not only conducive to save judicial resources,but also conducive to the defendant.The withdrawal prosecution system is in line with Chinese national conditions,so we should retain and improve it.On the one hand,in order to protect the rights of the defendant,it is reasonable to limit the time of withdrawal prosecution before the sentence is pronounced.It is also reasonable for the court to review the withdrawal prosecution and decide whether to allow.On the other hand,we should further improve the judicial review on withdrawal of prosecution,require the court to carry out substantive review on withdrawal prosecution,and with the consent of the defendant the court may also recommend the procuratorial organ withdrawal prosecution when necessary.According to the principle of no interest no litigation,no appeal is allowed to the court's verdict of allowing withdrawal prosecution,but both the defendant and the procuratorate can appeal to the court's verdict of not allowing withdrawal prosecution.